November 17, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF T.H., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-233-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2008
Before Judges Lisa and Reisner.
Defendant, R.G., appeals from a finding of neglect in the this Title 9 case.*fn1 She argues that the decision of the trial court should be reversed because the judge applied the incorrect legal standard in finding neglect and because there was insufficient evidence in the record to support the finding of neglect. We reject these arguments and affirm.
In October 2005, defendant learned she was four months pregnant. She sought prenatal care and participated in three prenatal care visits. On January 17, 2006, she tested positive for cocaine metabolite and acetaminophen. On January 23, 2006, defendant suffered a seizure and prematurely gave birth by emergency cesarean section to T.H., her first and only child.
Born two months prematurely, T.H. weighed only about two pounds. She was admitted to the hospital's neonatal intensive care unit because of her prematurity, and also because of respiratory distress syndrome, possible maternal cocaine abuse and thrombocytopenia.*fn2 In T.H.'s admission summary, the neonatologist noted defendant's positive cocaine test and wrote that defendant "has a history of cocaine use until 4-5 yrs ago (gave conflicting dates to L&D staff). Denies use, however test positive for sml [sic] cocaine metabolites and acetaminophine. Mother denied taking Tyl 3 or cocaine to me."
Drug screenings performed on T.H. yielded negative results. Nevertheless, T.H. remained hospitalized for two months after birth. Upon her release, she was classified as medically fragile and admitted to Saint Clare's Home for Children.
On the day after delivery, defendant reported to a hospital social worker that she last used marijuana six years ago, she never used any drugs other than marijuana, and she did not know how the positive cocaine test happened. Defendant reported that she served twenty-one months in State prison for possession of marijuana with intent to distribute in a school zone and she received substance abuse treatment while incarcerated. Defendant reported that following her release from prison in 2002, she failed to complete drug treatment at the Open Door treatment program because she failed a drug test. The Division of Youth and Family Services (Division or DYFS) attempted to contact Open Door, but the facility lacked records of defendant's attendance there.
The hospital made a referral to the Division regarding defendant's positive cocaine test. The referral noted that T.H. was not experiencing any withdrawal symptoms. When interviewed by a Division investigator, defendant denied any drug use during her pregnancy.
Defendant was living with the parents of a deceased former boyfriend (not T.H.'s father, who was incarcerated). Because of the premature delivery, defendant told the Division investigator that she was not immediately prepared to care for the child, but would take steps to obtain suitable housing and return to her work as a waitress as soon as possible.
Based on its investigation, DYFS found that allegations of neglect, consisting of a substantial risk of physical injury, were substantiated. Defendant agreed to the Division's case plan, which required defendant to comply with services and "refrain from drug/substance use/abuse." Defendant also agreed to be subject to the Division's monitoring.
On March 10, 2006, defendant tested positive for marijuana, thus constituting a violation of the case plan. The Division developed another case plan, to which defendant agreed, which included a provision that defendant would participate in a drug treatment program.
On March 14, 2006, DYFS filed a complaint for care, custody, supervision and to appoint a law guardian for T.H. The judge ordered that T.H. be immediately placed in the custody, care and supervision of the Division.
On March 21, 2006, the Division referred defendant to the Open Door drug treatment program and recommended her for outpatient care.
On March 29, 2006, the judge ordered that the Division would continue to have custody of T.H., defendant was to attend psychological and substance abuse treatment, defendant would have supervised visits with T.H., and defendant was required to complete CPR and apnea monitoring training. Defendant refused to submit to a drug screening in court on that occasion.
On May 24, 2006, the judge ordered the Division's continued custody of T.H. and transferred legal custody of T.H. to the Division. Physical custody was ordered to continue with the Division's placement. Defendant was directed to attend substance abuse evaluation and treatment as well as individual psychotherapy and parenting skills training. Supervised visitation was to continue. On that occasion, defendant submitted to a drug screening, which yielded a positive result for marijuana.
The factfinding hearing began on July 11, 2006. On that date, defendant denied using any illegal drugs, including marijuana and cocaine, during her pregnancy. She stated she last used marijuana in the summer of 2005. With respect to her positive cocaine test on January 17, 2006, defendant said she did not use the drug, but she suggested she might have absorbed cocaine residue from cocaine users in her house. The factfinding hearing continued and concluded on July 31, 2006. On August 16, 2006, the judge made findings, which included the following:
There are several concerns here and I will be honest with you, the standard for a fact finding is preponderance of evidence and I believe the Division has satisfied that standard. This Court must certainly look to all of the information presented to it at a fact finding. It's clear, even from [defendant]'s words herself, that [defendant] does ha[ve] a history of substance abuse, albeit a number of years ago, I believe it's approximately six years ago. But there was a history of that and there was a history that she went to Open Door and had, in fact, dirty urines at Open Door.
Now, that being set aside, that being put right here, so to speak, it's something this Court can consider. The Court also considers the current issues regarding substance abuse and that being that -- when I say current, that being the 3/10 positive for marijuana, as well as the 1/17/06 positive for cocaine, those give this Court [cause] for concern. The Court, in taking that and in taking the Division's position that they were working with [defendant], makes the following finding:
The fact that [defendant] has this history of this substance abuse and the fact that [defendant] on 1/17/06 tested positive for cocaine and on 3/10 also, more specifically 3/10, the Court makes the finding that [defendant] did also violate the case plan. Under our Title 9 statutes, if a parent does or does not do an act for -- which would benefit or be in a positive mode for the moral of the child, the Court sees -- and I wish -- I don't have my Title 9 out here, but it's a failure to do or doing any act that would be against the morals of the child.
And here's the Court's decision. [Defendant] violated that case plan. And I find that that failure to comply with the case plan is what puts the children at risk, because of the substance abuse history that [defendant] had and for the -- she signed the case plan, which said she would refrain from drug use and she violated that case plan. And it's the violation of that case plan, that's the act by her using marijuana, which puts the children at risk. And it's that act that is done that does not further the morals of the child. The fact that she violated the case plan the Division set forth with her to continue the child in her care and work with the Division in the best interest of the child.
So by a preponderance of evidence, and that's a standard the Court has to use, the Court can find that abuse or neglect was proven in this matter.
After additional proceedings, a permanency hearing was conducted and an order terminating the FN case was entered on September 4, 2007.
Defendant argues that the judge applied an incorrect standard in determining that defendant neglected T.H. We agree that in the course of her findings, the judge referred to an incorrect standard, but she also referred to the correct legal standard. Overall, considering her findings in their entirety, we are satisfied there was no error.
An "abused or neglected child" is one whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . or by any other acts of a similarly serious nature requiring the aid of the court . . . . [N.J.S.A. 9:6-8.21c(4).]
At a factfinding hearing, any determination of abuse or neglect of a child must be established by a preponderance of the evidence. N.J.S.A. 9:6-8.46b. If sufficient facts are established to sustain the complaint, "the court shall enter an ordering finding that the child is an abused or neglected child and shall state the grounds for said findings." N.J.S.A. 9:6-8.50.
Defendant focuses on the judge's reference to child abuse or neglect resulting from a "failure to do or doing any act that would be against the morals of the child." This standard is set forth in N.J.S.A. 9:6-1. However, N.J.S.A. 9:6-8.44, which defines factfinding hearings, relies on the standard set forth in N.J.S.A. 9:6-8.21c. In our view, the judge correctly applied the N.J.S.A. 9:6-8.21c(4)(b) standard in finding that defendant's conduct placed T.H. at risk. The judge found that defendant's violation of the case plan by using marijuana put T.H. at risk, thus constituting abuse or neglect.
We next consider defendant's argument that insufficient evidence existed to support the finding of abuse or neglect. The judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Further, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Defendant argues that her January 17, 2006 positive test for cocaine while pregnant, her March 10, 2006 positive test for marijuana and her reported use of marijuana in 2000 were insufficient to establish a pattern of drug use amounting to neglect. However, the judge did not find a pattern of drug use by defendant as the basis for her finding of neglect. She found that defendant's violation of the Division's case plan, in which defendant agreed to abstain from drug use, supported a finding of neglect.
On January 25, 2006, defendant agreed to the Division's case plan, which included the agreement that she refrain from illegal drug use. On March 10, 2006, defendant tested positive for marijuana. We note that defendant also tested positive for marijuana when screened at the courthouse on May 24, 2006, although the judge did not mention this in her findings. Thus, there is more than sufficient evidence to establish that defendant violated her case plan.
Defendant also argues that the judge improperly considered her positive prenatal cocaine test and history of prior drug use in finding abuse or neglect. The Division concedes that drug use prior to giving birth, in and of itself, does not constitute harm to a child. See In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999). However, defendant's drug use prior to giving birth to T.H. was not the basis for the judge's finding. That information was relevant, as was defendant's prior drug conviction for which she served a substantial State prison sentence and her prior failures at substance abuse treatment, to provide context to defendant's violation of her case plan after T.H.'s birth by using illegal drugs. Against this backdrop, we are satisfied that substantial credible evidence existed to support the finding that the use of marijuana in violation of the case plan constituted abuse or neglect by defendant.